United States District Court, W.D. New York
OFFICES OF KENNETH R. HILLER Attorneys for Plaintiff
CHAMBERS, of Counsel JAMES P. KENNEDY, JR. UNITED STATES
ATTORNEY Attorney for Defendant
KAISER Special Assistant United States Attorney, of Counsel
Federal Centre STEPHEN P. CONTE Regional Chief Counsel United
States Social Security Administration Office of the General
Counsel, of Counsel
DECISION AND ORDER
G. FOSCHIO UNITED STATES MAGISTRATE JUDGE
19, 2018, the parties consented, in accordance with a
Standing Order (Dkt. No. 18), to proceed before the
undersigned, pursuant to 28 U.S.C. § 636(c). (Dkt. No.
18-1). The court has jurisdiction over this matter pursuant
to 42 U.S.C. § 405(g). The matter is presently before
the court on the parties' cross-motions for judgment on
the pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure, filed by Plaintiff on October 5, 2017 (Dkt.
No. 11), and by Defendant on December 29, 2017 (Dkt. No. 15).
For the reasons discussed below, Plaintiff's motion is
denied and the Commissioner's motion is granted.
Jerome Thompson (“Plaintiff”), brings this action
pursuant to the Social Security Act (“the Act”),
seeking review of the Acting Commissioner of Social Security
(“the Commissioner” or “Defendant”)
decision denying his application for disability benefits for
Supplemental Security Income (“SSI”) benefits
under Title II of the Act, and Social Security Disability
Insurance (“SSDI”) benefits under Title XVI of
the Act, together (“disability benefits”).
Plaintiff, born on April 6, 1971 (R. 121),  alleges that he
became disabled on September 28, 2013, when he stopped
working as a result of a left leg injury. (R. 145).
application for disability benefits was initially denied by
Defendant on January 24, 2014 (R. 74), and, pursuant to
Plaintiff's request, a hearing was held before
Administrative Law Judge Karen Wiedemann (“Judge
Wiedemann” or “the ALJ”) on June 28, 2016,
in Buffalo, New York, where Plaintiff, appeared pro
se and testified at the hearing. (R. 8-27). Vocational
expert (“VE”) Casey Crawford also appeared and
testified. (R. 27-62). The ALJ's decision denying
Plaintiff's claim was rendered on July 20, 2016. (R.
13-24). Plaintiff requested review by the Appeals Council,
and on August 21, 2016, the ALJ's decision became
Defendant's final decision when the Appeals Council
denied Plaintiff's request for review. (R. 1-4). This
action followed on March 30, 2017, with Plaintiff alleging
that the ALJ erred by failing to find him disabled. (Dkt. No.
October 5, 2017, Plaintiff filed a motion for judgment on the
pleadings (“Plaintiff's motion”), accompanied
by a memorandum of law (Dkt. No. 11) (“Plaintiff's
Memorandum”). Defendant filed, on December 29, 2017,
Defendant's motion for judgment on the pleadings
(“Defendant's motion”), accompanied by a
memorandum of law (Dkt. No. 15) (“Defendant's
Memorandum”). Plaintiff filed a reply to
Defendant's motion on the pleadings on January 23, 2018
(“Plaintiff's Reply Memorandum”) (Dkt. No.
17). Oral argument was deemed unnecessary.
pertinent to the review in this case include that on October
21, 2013, Plaintiff fractured his left tibia (shinbone) while
wrestling with his cousin (R. 215, 219, 223). Upon admission
to Niagara Falls Memorial Hospital, in Niagara Falls, New
York, Donald Nenno, M.D. (“Dr. Nenno”), completed
left tibial open reduction and internal fixation surgery. (R.
215-16, 219-27). Dr. Nenno advised Plaintiff that surgery was
necessary to prevent future arthritis and that Plaintiff
would have a varying degree of permanent disability based on
the outcome of his surgery. (R. 223). Plaintiff received
regular check-ups with Kathleen Ventry, ANP, a Nurse
Practitioner (“Nurse Practitioner Ventry”) at
Niagara Falls Memorial Primary Care Center
(“NFMPCC”), from November 2013 until January
2016. (R. 228-36, 316-421). On November 14, 2013, an X-ray of
Plaintiff's left knee showed no significant degenerative
changes. (R. 277).
January 17, 2014, Donna Miller, D.O. (“Dr.
Miller”), completed a consultative orthopedic
examination of Plaintiff, noted that Plaintiff walked with a
cane and exhibited a hesitant gait (R. 243-33), and diagnosed
Plaintiff with post-surgical chronic left leg pain and opined
that Plaintiff had a mild limitation to the ability to stand,
walk, bend and kneel for prolonged periods of time. (R. 246).
same day, Janine Ippolito, Psy.D., (“Dr.
Ippolito”), completed a consultative psychiatric
evaluation on Plaintiff and noted that Plaintiff reported
that he was let go after working for one day as a security
guard and that no work “fits” him. (R. 238). Dr.
Ippolito evaluated Plaintiff with the ability to follow and
understand simple directions and instruction, perform simple
tasks independently, maintain concentration and attention,
maintain a regular schedule, learn new tasks, perform complex
tasks independently and make appropriate decisions, with no
significant limitations in Plaintiff's ability to
function on a daily basis. (R. 241).
March 27, 2014, Richard Ahr, M.D. (“Dr. Ahr”),
completed a post-surgical examination on Plaintiff and
prescribed Gabapentin (pain) for a possible diagnosis of
regional complex pain syndrome. (R. 257). That same day, Gail
Stokoe, M.D. (“Dr. Stokoe”), reviewed an X-ray of
Plaintiff's left knee that showed left knee osteopenia
(lower than normal bone density) and osteoarthritis and well
positioned surgical hardware. (R. 288).
April 28, 2014, Mohammad A. Khan, M.D. (“Dr.
Khan”), a sleep specialist with Niagara Pulmonary &
Sleep Medicine, P.C. (“NPSM”), completed a sleep
apnea evaluation on Plaintiff who reported waking with loud
snoring, tiredness, gasping arousals, and daytime symptoms of
hypersomnia (excessive daytime sleepiness). (R. 405-06). Dr.
Khan diagnosed Plaintiff with obstructive sleep apnea and
recommended that Plaintiff lose weight and avoid drowsy
driving. (R. 406).
9, 2014, Edward Ventresca, M.D. (“Dr.
Ventresca”), completed a sleep study on Plaintiff,
evaluated Plaintiff with an Epworth scale rating of nine and
diagnosed Plaintiff with severe obstructive sleep apnea. (R.
29, 2014, Paul Phillips, M.D. (“Dr. Phillips”),
completed an orthopedic evaluation on Plaintiff and noted
that Plaintiff exhibited antalgic gait (walking pattern to
alleviate pain), limited left knee range of motion
(“ROM”), advised Plaintiff to wean using his
cane, and referred Plaintiff for pain management treatment
for possible regional complex pain syndrome of
Plaintiff's left tibia. (R. 253, 255).
Practitioner Ventry noted that Plaintiff was able to walk
without a cane on December 19, 2014 (R. 362), and that
Plaintiff reported no depression, anxiety, panic attacks, or
frequent mood ...